Citation Nr: 9912461
Decision Date: 05/06/99 Archive Date: 05/12/99
DOCKET NO. 98-05 148 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an increased (compensable) disability
evaluation for service-connected scar of the neck.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
W. Yates, Associate Counsel
INTRODUCTION
The appellant served on active duty from November 1943 to
February 1946.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. That rating decision denied an
increased (compensable) disability evaluation for the
appellant's service-connected scar of the neck.
REMAND
In June 1998, a hearing was conducted before the RO. At the
hearing, the appellant testified that he has developed muscle
spasms, nerve damage and arthritis of the neck, secondary to
his service-connected scar of the neck. The Board interprets
this testimony as a reasonably raised claim for service
connection for muscle spasms, nerve damage and arthritis of
the neck, secondary to service-connected scar of the neck.
After a thorough review of the veteran's claims file, the
Board considers the appellant's claim for service connection
for muscle spasms, nerve damage and arthritis of the neck,
secondary to his service-connected scar of the neck to be
inextricably intertwined with the issue currently on appeal
inasmuch as a favorable adjudication of the claim for service
connection for muscle spasms, nerve damage and arthritis of
the neck, secondary to service-connected scar of the neck,
may well affect the outcome of the appellant's claim for an
increased (compensable) disability rating for service-
connected scar of the neck. Therefore, it is incumbent upon
the Board to remand this case to the RO so that it may
address this new issue raised by the appellant as a condition
precedent to the Board's adjudication of the issue of
entitlement to an increased (compensable) disability
evaluation for service-connected scar of the neck. Harris v.
Derwinski, 1 Vet. App. 180 (1991).
In light of the foregoing, the Board would be remiss if it
were to attempt to decide the issue on appeal without first
obtaining all the pertinent evidence that is missing,
scheduling the appellant for another VA disability
compensation examination, and allowing the RO to consider the
appellant's claim for service connection for muscle spasms,
nerve damage and arthritis of the neck, secondary to service-
connected scar of the neck.
To ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should request that the
appellant provide the names, addresses
and approximate dates of treatment for
all VA and non-VA health care providers
who have treated him for any neck
disorder since his discharge from
military service. After obtaining any
necessary authorizations, the RO should
attempt to obtain copies of those
treatment records identified by the
appellant which have not been previously
secured.
2. The RO should then schedule the
veteran for a VA examination by the
appropriate specialist to examine the
veteran's cervical spine and his service-
connected scar of the neck. With respect
to the veteran's service-connected scar of
the neck, the examiner should identify
exactly where the veteran's scar is
located and its size; photographs of the
veteran's neck should be taken to assist
the adjudicators in ascertaining the
precise location of the veteran's wound.
The report should indicate whether this
scar is: (1) superficial or poorly
nourished with repeated ulceration, and
(2) tender and painful on objective
demonstration. The report should also
identify the effects, if any, that this
condition has on the veteran's other body
systems. All necessary tests, including
X-rays, etc., should be conducted and the
examiner should review the results of any
testing prior to completion of the report.
The examiner should also fully examine the
veteran's cervical spine and neck area,
and list any disorders that are found.
With respect to any cervical spine
disorders found, the examiner is requested
to review the appellant's claim file,
including his service medical records,
showing an excision of a carbuncle on the
neck (marked in the envelope in the claims
folder containing the service medical
records), and the veteran's January 1998
VA examination for skin. Following a
review of these records, the examiner is
requested to offer his or her opinion on
the following:
a. (1) Whether it is more likely
than not that the appellant
developed a chronic cervical spine
disorder during his active duty
service from November 1943 to
February 1946, and, if not, (2)
whether he developed a cervical
spine disorder as a result of his
service-connected scar of the neck,
or (3) whether the service connected
scar of the neck made a cervical
spine disorder worse.
The claims folder and a copy of this
remand must be made available and
reviewed by the examiner prior to the
examination. The report of examination
should be comprehensive and include a
detailed account of all manifestations of
any shoulder disorder found to be
present. The orthopedist should provide
complete rationale for all conclusions
reached.
3. Following completion of the above
actions, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
Specific attention is directed to the
examination report. If the examination
report does not include fully detailed
descriptions of pathology and all test
reports, special studies or adequate
responses to the specific opinions
requested, the report must be returned
for corrective action. 38 C.F.R. § 4.2
(1998) ("if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes."). Ardison v. Brown, 6 Vet.
App. 405, 407 (1994); Abernathy v.
Principi, 3 Vet. App. 461, 464 (1992);
and Green v. Derwinski, 1 Vet. App. 121,
124 (1991).
4. The Board has found that the issue of
service connection for muscle spasms,
nerve damage and arthritis of the neck,
secondary to service-connected scar of
the neck, is inextricably intertwined
with the issue of entitlement to an
increased (compensable) disability
evaluation for service-connected scar of
the neck. Accordingly, the RO should
first develop and adjudicate the issue of
service connection for muscle spasms,
nerve damage and arthritis of the neck,
secondary to service-connected scar of
the neck. Subsequently, the RO should
readjudicate the issue of entitlement to
an increased (compensable) disability
evaluation for service-connected scar of
the neck.
Once the foregoing has been accomplished and, if the
appellant remains dissatisfied with the outcome of the
adjudication of the claim(s), both the appellant and his
representative should be furnished a supplemental statement
of the case covering all the pertinent evidence, law and
regulatory criteria. They should be afforded a reasonable
period of time in which to respond.
Thereafter, the case should be returned to the Board for
further appellate consideration. The appellant needs to take
no action until so informed. The purpose of this REMAND is
to assist the appellant and to obtain clarifying information.
The Board intimates no opinion as to the ultimate outcome of
this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999) for additional
development or other appropriate action must be handled in an
expeditious manner. See The Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).